Splitting 5-4, the Supreme Court on Tuesday sharply restricted the right of environmentalists to sue to force the government to follow existing rules laid down by Congress that gave private individuals and groups a chance to shape how agencies manage public lands and forests.  Unless individuals or groups can show that they will be explicitly harmed by specific actions that an agency takes outside of the procedures Congress laid down, they have no right to pursue a challenge in court, the Court ruled in Summers, et al., v. Earth Island Institute, et al. (07-463).

The case involved a decision by the U.S. Forest Service in 2003 to avoid asking the public to offer advice and comment on any forest or land project that the agency judged to have little environmental impact.  Generally, a 1992 federal law told the Forest Service to invite public reaction when it was making land and resource management plans.  But the Service decided on its own that it would not invite any reaction to some plans that it chose to exempt from assessing their enrivonmental impact because it thought that impact would be minimal.

The Earth Island Institute, the Sierra Club and other conservation advocates thus did not get a chance to offer input when the Service planned to cut down timber and sell it, after a fire had burned a large area of the Sequoia National Forest in California.  A plan known as the Burnt River Project would involve logging and sales on about 238 acres of burned forest.  The plan was later withdrawn by the Service, and a dispute with the environmental groups was then settled as to that specific project.  The challengers persisted in court, however, seeking to undo the Service’s suspension of the notice-and-comment requirement.

The Ninth Circuit Court allowed the lawsuit to go forward, at least on that specific claim.  That is the result the Supreme Court overturned on Tuesday.  No one involved in the lawsuit, Justice Antonin Scalia wrote for the majority, could show a specific plan to visit a specific site  involving logging or sales, or could show that any specific logging or sale would interfere with their right to enjoy a forest. In addition, the opinion added, no one had shown a specific intent to comment if the opportunity to do so had been restored.  Without some “concrete injury” to an individual or group’s interest, there was no right to sue simply because a procedural right had been taken away, the Court concluded. Thus, the federal courts had no jurisdiction to hear the continuing complaint about suspension of the notice duty.

The Scalia opinion was joined by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Clarence Thomas.  Justice Kennedy also wrote separately to argue that the case would be different if Congress had expressly given private groups a right to sue to protect their interest in visiting or using forests.

Justice Stephen G. Breyer wrote the dissenting opinion, arguing that the five conservation groups had shown that the salvage and sales of timber would have an impact on their right to use forest lands, and they had a right to sue to protect their opportunity to try to keep such salvage and sale actions from causing harm in the future.  Joining the dissent were Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

In a second ruling Tuesday, the Court told the government’s Bureau of Immigration Appeals that it must decide, in cases involving individuals seeking asylum in the U.S. out of fear of persecution in their home country, whether they may qualify for asylum if that refugee had been forced in his own country to mistreat or harm others while acting as an armed guard. 

Without dictating what that agency must decide, the Court said a federal law that denies asylum to a refugee who joined in the persecution of others in the home country is unclear as to whether it includes an exception for an individual who, though he took part in harming others, did so under threat of death or torture.  The law can be read either as denying asylum in all cases of harm to others, or as allowing asylum if that kind of action was forced upon the refugee while guarding others at home, Justice Kennedy wrote.  The BIA must be the first to sort that out, the Court said.

Justice Thomas wrote a dissenting opinion, arguing that the law clearly bars asylum for anyone who harmed others in the home country.  Justice Stevens filed an opinion partly concurring and partly dissenting, joined by Justice Breyer.  Justice Scalia, joined by Justice Alito, filed a concurrence.

The ruling came in the case of Negusie v. Holder (Attorney General), 07-499, involving a refugee who escaped from Eritrea and sought asylum in the U.S.  The individual, Daniel Girmai Neguise, had been arrested in Eritrea during the prolonged war that country had with Ethiopia.  When new hostilities broke out in 1998, he had been drafted but refused to serve. He was held prisoner at a military base, and then served as an armed guard over other prisoners.  His duties including preventing others from escaping.

His asylum plea was denied because of that role, based on the interpretation that federal law does not allow an exception where such harmful acts were coerced.  That is the issue that immigration officials must now re-visit.

Posted in Summers v. Earth Island Institute, Uncategorized